Alburquerque v. Alburquerque, No. 82598-COA, Order of Reversal and Remand (Unpublished Disposition, Dec. 13, 2021)
This is an appeal from a post-decree order regarding child custody. The parties were divorced in 2012. Pursuant to their decree, the parties were awarded joint legal and joint physical custody of their minor child. Shortly after, the district court modified the parties’ parenting schedule due to Rolando’s work schedule, but they maintained joint physical custody. Rolando had the child every other Thursday at 8pm through Tuesday at 8pm. They followed this schedule until 2020, when Rolando moved to modify the schedule again, requesting to switch to a week-on/week-off timeshare. After a hearing, the district court denied Rolando’s motion, concluding that Rolando did not have joint physical custody as he has the child only 35 percent of the time. The district court held that there was no substantial change in circumstances warranting a modification of the parties’ timeshare and that the best interest standard was not met. Rolando appealed.
The Court of Appeals clarified that modifying a joint physical custody arrangement is appropriate if it is in the best interest of the child pursuant to NRS 125C.0045(2) and Rivero, but modification of a primary physical custody arrangement is appropriate only when the district court finds that there has been a substantial change in circumstances affecting the welfare of the child and that modification would be in the best interest of the child pursuant to Ellis and NRS 125C.0035(4). The Court held that here, the district court summarily concluded that because the parties’ timeshare constituted a primary physical custody arrangement, and Rolando did not show a substantial change in circumstances, a modification to the timeshare was not warranted. However, pursuant to the most recent custodial order, the parties’ timeshare was a joint physical custody arrangement pursuant to Bluestein. The district court failed to make any findings as to whether the parties were exercising a different custodial arrangement than that previously ordered. Because the parties had a joint physical custody arrangement pursuant to the previous order, the district court abused its discretion in concluding that Rolando was required to demonstrate a substantial change in circumstances.
Maldonado v. Delgado, No. 82718-COA, Order of Affirmance (Unpublished Disposition, Dec. 21, 2021)
This is an appeal from a decree of divorce. The Decree awarded the parties joint legal custody of the parties’ two minor children and Arlin was granted primary physical custody. Jose was ordered to pay Arlin child support, alimony in a lump sum payment of $12,600, and $11,430 for failure to make 10 mortgage payments as previously ordered by the district court in a temporary order. Jose’s alimony and mortgage payment arrears were to be paid from his portion of the equity in the parties’ marital residence. Lastly, the district court ordered that Jose’s culinary pension would be divided pursuant to Gemma v. Gemma. Jose appealed.
The Court of Appeals found that the district court cited NRS 125C.0035 and made specific best interest findings in support of its custody award, and therefore did not abuse its discretion in awarding Arlin primary physical custody of the parties’ two minor children. The Court similarly found that the district court made a number of findings as to the relevant alimony factors in NRS 125.150(9), and therefore did not abuse its discretion in awarding Arlin alimony or in determining an amount it deemed just and equitable. Lastly, as the parties’ Decree provides that Jose’s pension will be divided as required by law, the district court did not abuse its discretion in dividing Jose’s pension.
Romero v. Bletcher, No. 82585, Order of Affirmance (Unpublished Disposition, Dec. 23, 2021)
This is an appeal from a district court order denying Jimmie’s motion to modify child custody. Jimmie and Brandi were divorced via a stipulated decree that gave the parties joint legal custody and joint physical custody of their one minor child. Jimmie later filed a motion seeking primary physical custody and sole legal custody on an emergency basis, alleging that Brandi was using illegal drugs, threatening to take their child into her custody by force, and contemplating suicide. He also filed an amended motion that went into greater detail on these allegations and also accused Brandi of physically abusing their child. The district court set the matter for a 3-hour evidentiary hearing.
Shortly after the court set the date for the evidentiary hearing, Jimmie filed another motion, this time requesting that Brandi’s parenting time be supervised. Jimmie stated a number of allegations in this motion, including that at one child exchange, Brandi tried to drag the child into her car and caused a physical scuffle that resulted in Brandi being arrested for domestic battery. After a hearing on Jimmie’s motion, the district court declined to order Brandi’s parenting time be supervised, granted Brandi’s oral request that child exchanges take place at a surveilled location rather than at Jimmie’s house, and granted Jimmie’s request that he be allowed to randomly order drug tests of Brandi at his own expense.
A few weeks before the evidentiary hearing, Brandi filed an emergency motion requesting that Jimmie be found in contempt for failing to facilitate parenting time between the child and Brandi, asserting that no in-person visits had occurred for approximately 5 months. At the hearing on Brandi’s motion, Jimmie expressed concern about being able to present his case in only 90 minutes. The court deferred any further action until the time of the evidentiary hearing. At the evidentiary hearing, each party was given 70 minutes to present their respective case. After the evidentiary hearing, the district court denied Jimmie’s request to modify custody and left the parties’ joint custody arrangement in place.
On appeal, the Court of Appeals found that the district court heard conflicting testimony on Jimmie’s custody modification request from eight witnesses, including two mental health professionals who had spent time with the child, and made findings sufficiently thorough and specific. The Court held that substantial evidence supported the district court’s denial of Jimmie’s custody modification request.
Jimmie also argued on appeal that the district court violated his due process rights by limiting each party to 70 minutes rather than 90 minutes. However, Jimmie never formally objected to the district court’s decision to limit the time, nor did he argue a violation of his due process rights below. Nevertheless, the Court held that the district court accorded Jimmie his “full right to be heard according to the law” pursuant to Young v. Nev. Title Co. As such, the Court affirmed the judgment of the district court.
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